S>he.Vla^ba.r<i>e-ir, Sa/v^ue.\, 



.C-V\ 



i'3ta. 




Qass. 
Book. 



SPEECH 



OP 



HO]^. SAMUEL SHELLABARGER, 

OF OHIO, 



ON 



THE HABEAS CORPUS 



DELIVERED 



IN THE HOUSE OF REPRESENTATIVES, MAY 12, 1862, 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 
1862. 



M 17, 3<J 









SPEECH 



The House being in Committee of the Whole on the 
state of the Union — 

Mr. SHELLABARGER said: 

Mr. Chairman: At this time in our public 
affairs I earnestly deprecate all mere partisan con- 
tests. They are unworthy of us now in the midst 
of the struggles of a great people for national life. 
Surely, when the issues of life or death are immi- 
nent and impending in the deadly strife of battle, 
and when the existence of free institutions among 
men depends upon the events of a day of blood, 
it is fit that the Representatives of the people 
should comprehend the solemn dignity of the 
events by wh ich God 's providence has surrounded 
them. At such a time how mean, how vulgar, how 
intensely low are the tricks, the jugglery, and the 
grimaces of the political ring-master, exhibited 
within, or sent out from the Halls of the American 
Congress. What an appetite that must be which 
goes down now from the sublime mountains of 
responsibility and opportunity for our country's 
deliverance, to matten on the moor and feed upon 
the garbage of effete partisanship. This bad taste 
has a general application now to all parties. I 
apply it to individuals of neither. 

But, sir, if this weie a mere matter of taste, 
there should be no dispute. But, sir, it is not. 
Recently, distinguished members of this House 
have chosen to arraign before this country and tlie 
world the present Executive of this nation in lan- 
guage which is calculated, I would fain iiope not 
intetuled, to destroy the power of that Executivp 
for the deliverance of the nation from this unnai- 
ural and causeless rebellion. This cannot be over- 
looked by the friends of the Government. Among 
other grave charges contained in that address is 
one which alleges that" the history of the Admin- 
istration for the twelve months past has been, and 
continues to be, a history of repeated usurpations 
of power and of violations of the Constitution, 
and ofthe public and private rights of the citizen." 
Thisaddressalso alleges thafforsixtyyearsfrora 
the inauguration of Jefferson, on the 4ih of March, 
1801, the Democratic party, with short intervals, 



controlled the power and the policy of the Federal 
Government:" and^itavers thatduringall thistime 
"public liberty was secure, private rights undis- 
turbed; every man's house was his castle; the 
courts were open to all; no passports for travel, 
no secret police, no spies, no informers, no bas- 
tiles; the right to assemble peaceably; the right to 
petition; freedom of religion, freedom of speech , 
a free ballot, and a free press; and all this time the 
Constitution maintained and the Union of the 
States preserved." This address, moreover, avers 
that the " first step towards a restoration of the 
Union as it was is to maintain the Constitution as 
it is;" and that " neither the ancient principles, 
the policy, nor the past history of the Democratic 
party require nor would justify its disbandment. 
Is there anything in the present crisis which de- 
mands it? The more immediate issue is, to main- 
tain the Constitution as it is, and to restore the 
Union as it was;" and afterwards declares, in al- 
luding to certain proceedings to save the Union in 
the Thirty-Sixth Congress, that " at every stage, 
the great mass of the South, with the whole Dem- 
ocratic party, and the whole Constitutional Union 
party, ofthe North and West, united in favor of 
certain amendments to the Constitution — and chief 
among them tlie well-known " Crittenden propo- 
sitions," which would have averted civil war and 
maintained the Union. At every stage, all pro- 
posed amendments inconsistent with the sectional 
doctrines of the Chicago platform were strenu- 
ously and unanimously resisted and defeated by 
,llie Repulslican party." 

Now, Mr Chairman, I have neither taste, in- 
cHnation, or heart to analyze or discuss the logic 
or truth of this remarkable paper. ! allude to it 
for no such purpose. An allusion to a single fea- 
ture will sufficiently indicate, to the intelligent 
American people to whom it is addressed, its mas- 
terly logic; and an allusion to another its char- 
acter for veracity. It assures us first that the Re- 
publican party destroyed the Union by adhering 
to the Constitution " as it is,^' and by refusing to 
alterit; and second, that that Union is now to be re- 



stored by doing; the very thino; wliich destroyed it, 
lo wit, by " maintaining the Constitution as it is !" 
And this logic is sondmirabh^ in the judirment of 
its nuihors, that it is lionored and illuminated, in 
the addnss, by being set up in magnificent capi- 
tals! This is enoiigli for the logic. Now for the 
truth. Notice again the already cited extract, sol- 
emnly averring to this nation that duriiij; the en- 
tire sixty years of Democratic rule, from 1801 and 
down to Mr. Lincoln's administration and includ- 
ing Mr. nuchanan's, " public liberty was secure, 
private rights undisturb.d, every man's house his 
castle, the courts open to all, no passports for 
travel, no secret police, no spies, no informers, no 
bastiles, the right to assemble peaceably, the right 
to petition, freedom of religion, free sjieech, a free 
ballot-box, a free press, aiui all tliistime the Con- 
stitution maintained and the Union of the States 
preserved." 

Now, glance at the results of sixty years of 
Democratic compromise with slave rule. Look 
at that century plant, so tenderly tended and wa- 
tered for these sixty years of Democratic culture, 
which at last bloomed justas the sun wont down 
on its golden age. Ay," sir, to use the language of 
this address, look at "the choTce fruits of Demo- 
cratic principles and policy, carried out through 
the whole period during whicli the Democratic 
party held the power and administered the Fed- 
eral Government, "and which the nation plucked, 
full ripe, from the hands of the last Democratic 
Administration, about every officer of which was 
of that party. 

Sir, the Treasury had been litprally robbed by 
its custodian. Tiie vessels of the Navy, with, I be- 
lieve, the solitary exception of two ships — the 
Brooklyn and the' Relief— were eitherdismantled 
or sent to foreign seas as a preparation for the in- 
ception of the rebellion. The arms of the Gov- 
ernment had been dispatched to southern arsenals 
aiid depots to arm the impending revolt. Senators 
were openly engaged in the Senate, and ministers 
in the offices of State, in maturing and consummat- 
ing the overthrow of the Constii^ition. The Presi- 
dent had, in obedience lo the demand of these con- 
spirators, so modified his message to Congress as 
to virtually license the rebellion, asa thing which, 
thougli unlawful, the Government had no power 
to arrest. Senators on the floor of their Chamber 
had boasted that the.se Halls should soon be the 
" dwellingplac'cofthcowlsandthe bats." Others 
had, in the saine Halls, boasted that the trees 
of Texas were then ornamented with the bodies 
of murdered citizens, hung for opinion's sake. 
Armies of murderer.*!, assassins, and traitors pos- 
ses.sed the capital, and hedged up all the approaches 
to it, so thai ihe incoming Executive could only 
reach his seat ai peril of life. Other armies were 
irapidly concentrating and rushing to the seat o' 
•Government, sworn to the total destruction and 
overthrow of the Government and all its constitu- 
tional ministers and officers. Every southern fort 
and arsenal and navy-yard and mini and custom- 
house and revenue ship had been either sei2ed and 
wrested from the Government by the hand of the 
very leaders of that southern Democracy, or were 
in imminentperil of h-.ing so seized and destroyed. 
One half of the officers of i lie Army and Navy had 



taken perjury upon their consciences and the sin 
of Iscariot into their souls, by betraying and tak- 
ing arms against the Government which fed them. 
The feeble bands garrisoning our forts were men- 
aced with death and starvation by these same con- 
spirators. About one third the States had avow- 
edly withdrawn from the Union, and some othei|j 
were about lo depart. The courts of the United 
States were closed in every one of these States 
by violence or by the treason of the judges and 
marshals. Two hundred millions of indebted- 
ness to northern citizens, contracted in a large 
part for the very purpose of being repudiated, 
was in fact totally repudiated in these seceded 
States, and all courts, agencies, and modes of col- 
lection were closed or destroyed. The Constitu- 
tion of the Government was avowedly and practi- 
cally superseded and annulled by another adopted 
by the conspirators; and that in total neglect or 
express violation of the votes of the people. The 
voice of the people against the treason was stifled 
by the use of arms stolen from the Government, 
and used to compel submission at the ballot-box. 
Tens of thousands of the loyal citizens of the 
South were stripped of all their estates and ban- 
ished fi'om their homes forever, for no other crime 
than of being suspected of loyalty to their beloved 
Government. Other thousands whipped, some 
with thongs, some with thorns, and some with 
wires of steel and iron, upon naked bodies, only 
for lovijig too well the Governmenl of Washing- 
Ion. Other thousands were murdered sometimes 
before the eyes of their own wives and children 
for the same offense. So'me hung, some impaled, 
some drowned, some suffocated by being inclosed 
in barrels, some starved, some shot, and some 
roasted alive at the stake; and all this, until not a 
single citizen whom murder and violence could de- 
stroy or banish was left in all this seceded South 
who was loyal to the Constitution. The freedom 
of speech and the press for the defense of the Gov- 
ernment was totally destroyed and unknown, and 
every man who dared to even vindicate these, was 
either assassinated or banished from the land, 
upon edicts like that of a Democratic candidate 
for President — Mason, of Virginia. 

Sir, if the sickening details of individual out- 
rage vvere not too enormous in extent, and too 
shocking in brutality to admit of particulariza- 
tion, the chronicler of this despotism, would put 
Nero and Caligula to the blush. It would render 
Philip II eminently humane and hospi table, woultl 
record robberies at Wilmington, North Carolina; 
the murder of citizens of New Jersey at Charles- 
ton; imprisonments, robberies, and, at last, ban- 
ishment sal Savannah; murders of citizens of New 
Oirleans, at Abbeville; roasting alive at a tree a 
man in Harris county, Georgia; the murder of 
Crawford, and the murder, robbery, or banish- 
ment of two hundred others in Tarrant county, 
Texas, including three Methodist ministers of the 
gospel; the imprisonment of women at Charles- 
ton; imprisonment and ultimate banishment of 
a citizen of New Hampshire at Charleston; the 
scourging almost to death of an aged man and iiis 
son at Enrico Mills, Georgia, and afterwards cruel 
imprisonment; the robbery, assassination, and 
murder of whole communities in East Tennessee; 



and all this without even the suspicion of any 
other crime than loyalty to the Government of the 
United States. 

But, sir, I have no inclination for such shock- 
ing recitals. The whole South was literally 
deluged with blood and assassination, until it 
vomited from it everything that was like free 
speech, a free press, or a free religioH, and every 
man who was known to be loyal to the Constitu- 
tion of the United States. One universal pall of 
unmitigated night of despotism settled down upon 
all that vast, beautiful, but God-forsaken land. 
And such was tlie condition of the Republic at the 
time when this address tells us " public liberty was 
secure, private rights undisturbed, every man's 
house his castle, courts open to all, no passports 
for travel, no spies, no informers, no bastiles, no 
secret police, the right to assemble peaceably, the 
right to petition, freedom of religion, freedom of 
speech, a free ballot, a free press, and all tliistime 
the Constitution maintained and the Union of the 
States preserved." 

I put these startling facts of fearful and bloody 
liistory in contrast with the startling averments 
of this address, not to aver or intimate that the 
great mass of the loyal and patriotic Democracy of 
the North are intentionally responsible for these 
huge wickednesses, for they are not, and such an 
assertion would be most unworthy and unjust. 
But I do it in self-defense against the most reck- 
less and unmitigated sianderof this address, which 
imputes the authorship of all these horrors and of 
this ruin to those who elected and who support 
this Administration;^a ruin which they brought by 
leaving " the Constitution as it is," and by declin- 
ing again to compromise away the Consiitutio)!, 
under a threat of its destruction, at the bid of the 
slave power. But I especially and emphatically 
point to this history to say that that very south- 
ern Democracy, which held in its hand the powers 
of this Government during these sixty years 
boasted of in the address, and which controlled 
the national Democracy, is responsible for and is 
the infernal architect and author of all this Jiideous 
ruin. 

Here, Mr. Chairman, I leave the logic and the 
veracity of this address to consider that other ac- 
cusation which it contains, that the history of this 
Administration " has been and continues to be a 
history of repeated usurpations of power and of 
violations of tlie Constitution and of the public 
and private rights of the citizen." I shall con- 
sider now but one, but that the most prominent, 
specification usually pointed to in vindication of 
this denunciation of the President. It is that he 
has despotically and unconstitutionally deprived 
the citizen of liberty. 

Mr. Chairman, in England and America, in this 
House and in the Senate, by the British minister 
residing at this Government, and by the London 
Times, by Jefferson Davis and my colleague, [Mr. 
Vallandigham,] the President of the United States 
lias been denounced as a tyrant and despot, be- 
cause he has ordered certain conspirators engaged 
in attempts to overtlirow the Government to be 
arrested and detained in military custody. And 
my colleague proposes, by a bill now pending in 
rh is Howee, to imprison the Prcsidentof the United 



States for not e.Kceeding two years if he shall re- 
peat the conduct of which he has been guilty in 
the imprisonment of Merryman and his confed- 
erates. And, sir, within a few days of the time I 
speak, in this House, this conduct has been de- 
clared to be, in the opinion of most distinguished 
members, illegal and arbitrary. These charges 
and the grounds of them I propose to consider. 

The importance of these considerations cannot 
be overstated. They touch the heart of the Con- 
stitution; and decided one way or the other, they 
decide its life. I shall make no apologies for at- 
tempting to contribute my mite to what I deem 
the correct conclusions touching it. I shall, there- 
fore, proceed without a single other preliminary 
remark to the question which this bill involves, 
to wit, to whom does the Constitution intrust the 
power of suspending the privilege of the writ of 
habeas corpus ? 

The clause which authorizes this suspension is 
in these words: 

" Tlie privilege of the writ of habeas corpus shall not be 
siispijndPtl milcss wiion, in cases of rebellion and invasion, 
tlie public safety may require it." 

One class of opinion maintains that Congress 
alone can suspend the " privilege;" another that 
the President iriay do so in the events stated in the 
Constitution when it may be done. I maintain the 
latter view, and proceed to consider, first, the ar- 
guments in favor of the former class of opinions; 
and second, those in favor of the latter. 

The first argument generally presented ascrib- 
ing this power exclusively to Congress is that 
section nine of article two of the Constitution is 
one exclusively devoted to restraints upon the 
powers of Congress, and that it would be uni-ea- 
sonable to suppose that one restraint upon the Pres- 
ident's powers was wrested from its natural place 
in the Constitution in that second article which 
does relate to the President's powers, and was 
placed in a family to which it did not belong of 
the powers of Congress. This argument purports 
to be based upon what is a sound rule of legal in- 
terpretation, and which rule the law expresses in 
its technical language by the terms noscitur a sociis. 
If the facts upon which the argument is based 
were as they by this argument are assumed to 
be, it would be a very strong argument against 
the position I maintain. But it is singular that 
an argument should be based upon a state of facts 
which facts are disproved by simply reading the 
Constitution. This assumption of fact involves 
in it a double error: first, in assuming that all the 
other clauses of this section nine are prohibitions 
on the powers of Congress; and second, in assum- 
ing that there is no other quality belonging to tliis 
clause as to the habeas corpxis which makes it like 
its fellows in the ninth section, and makes it, 
therefore, proper to be jilaced where it is. Both 
of these facts are assumed by this argument, and 
both are refuted by simply reaKJirig the Constitu- 
tion. 

Now, it is plain that if this ninth section does 
contain one other clause than that under consider- 
ation, which is a prohibition upon the acts and 
powers of the Executive, then this one exception 
totally anniliilates the whole argument which ifl 
based on this family likeness; because it isaimpiy 



ridiculous to say that the finmcrs of the Consti- 
tution would put one proliibition upon executive 
powers in this ninth section, but they would not 
put two in it. All these arj^uments, based like this 
one is, on associations of things similar, are de- 
stroyed by the establishment of one clear and ad- 
mitted exception. 

In this ninth section we find one clear and ex- 
press prohibition upon the executive power, which 
prohibits money from being drawn from the 
Treasury except upon appropriations made by 
law. Who draws money from the Treasury to 
pay national liabilities? The President and his 
ministers, of course. Wiio then are prohibitt.'d 
from drawing except upon appropriations? The 
Department which is charged with the duty of 
drawing, of course. Can anything be more self- 
evident? 

But to get rid of this, the gentleman from Ohio 
[Mr. Pendleton] reads this clause in a twist. He 
makes it read: " Congress shall have no power to 
permit money to be drawn from the Treasury ex- 
cept in consequence of appropriations," which is 
equivalent to sayingthat Congress shall not permit 
money to be withdrawn unless it permits it; Con- 
gress shall not appropriate money unless it shall 
appropriate it. This reading, I submit, does not 
bring tiiis constitutional clause up to the dignity of 
good nonsense. This clause has been repeatedly 
held to be just what it is, to wit, a prohibition upon 
all the custodians of the public money, whereby 
they are prohibited from using, or, by contract or 
otherwise, appropriating the public money, and 
whereby all liens on such moneys are excluded, 
and can be created by no executive act. The pro- 
hibition is therefore decided to be upon the Execu- 
tive. (See 3 Opinions, 13; United States vs. Bar- 
ney; 3 Hall L. 1., 130, &c.) 

The argument, therefore, fails which assumes 
that there are in the ninth section no prohibitions 
on the executive powers, just because there are 
such prohibitions. 

The other assumption of fact upon which this 
argument is based is, that ihis hahcaa corpus clause 
has no other quality which makes it like the fam- 
ily in the ninth section, and renders it proper to be 
placed there. It has such similar quality, and one 
whicli is common to every one of the clauses in 
this section — and it is the only quality which is 
common to them all — which is that it, like every 
one of its fellows, is a negation or prohibition of 
power. It is this common property of these clauses 
which brought them together in one section, and 
not the fact that they were all negations upon the 
powers of Congress, as distinguished from the 
negations u|ion powers of the otherdepartmentsof 
the Government. To say that the ninth section 
contains no prohibitions upon the powers of any 
department of the Government except Congress, 
is to say that the President is not prohibited from 
granting — as the English Crown may — titles of 
nobility, because there is no prohiliition upon 
granti.ng such titles except in this clau.se. It is en- 
tirely evident that this section contains a collec- 
tion of prohii)itions of power which apply to all 
the departments of the Government — President, 
Congress, and all. 

The same answer is to be made to the argu- 



ment which assumes that the first article, in which 
the habeas corpus clause is found, is devoted ex- 
clusively to the.legislaiive department of the Gov- 
ernment. The fact is notas the argument assumes 
it is, and the argument fails whin the fact does 
upon which it is based. The tenth section of this 
first article is devoted to prohibitions upon the 
powers of the States, and the first clause of that 
section contains ten distinct and ex[>ress prohibi- 
tions upon the powers of the Slates, and has no 
earthly relation to the powers of Congress. Is 
that not a most strange argument which admits 
that the framers of the Constitution have put ten 
prohibitions of power into the first article of the 
Constitution which do not touch the powers of 
Congress, but argues that it is absurd to suppose 
they would put eleven such prohibitions in it? 

But if any further fact be required to show the 
total worthlessness of the arguiv)ent based u])on 
the position of this clause in the Constitution, that 
Tact is to be found in the history of the adoption 
of the clause. Where was this clause placed when 
it was adopted by the convention? The answer 
to that question, of course, shows the only sense 
of the convention, which is to be learned from the 
connections they gave the clause. Now, the fact 
is that the habeas corpus clause was, by the con- 
vention, made as being a part of and limitation 
upon thejudiciary department of the Government. 
Its history in the convention may be condensed 
thus: 

On the 29th of May, 1787, Charles Pinckney 
(Elliot's Debates, p. 148) reported a " Plan of a 
Federal Constitution," in ,lhe sixth article of 
which, concerning the legislature, the hnbeascorpua 
appeared in the convention for the first time in 
these words: 

'•Tin; Legislaliirft of the United States shall pas.<? no law 
on the siitycct of religion nor touching or al)ridi;ing the lil>- 
erty of the press, nor shall the privilegeof the wrilof Aaieoi 
corpus ever be suspended, except in ease of rebellion or 
invasion." 

This reported " plan" of Mr. Pinckney never 
came up again in the convention. 

On the 20ih of August (Elliot's Debates, p. 249) 
Mr. Pinckney moved several propositions to be 
refern.'d to the committee of detail, one of which 
propositions was in these words: 

"The privileges and benefits of the wr'n oC habeas corpus 
shall be enjoyed in this Governinfnt in the most expeditious 
and ample manner, and shall not be suspended by the Legis- 
lature except upon the most urgent and pressing occasions, 
and for a limited time, not exceeding months." 

This was the second time a /ta6pascoJ7JMS clause 
was before the convention. On the 28th of Au- 
gust (Elliot's Debates, p. 270) the convention was 
engaged in receiving and considering independent 
or new provisions, and also amendments to the 
Constitution, which were then before the conven- 
tion from the committee upon detail, and the ha- 
beas corpus clause was brought up the third and 
last time, when Gouverneur Morris moved the 
clause which was adopted and which is now a 
part of the Constitution; and he moved it ex- 
pressly, and it was by the convention adopted, as 
an amendment to, and a part of the fourth section of 
the eleventh articleof the Constitution which had 
on the 6th of August been reported by the commit- 
tee of five. And«his fourth section of the eleventh 



article related to the judicial department of the 
Government, and the fourth section to the place 
of criminal trials, (Elliot's Debates, p. 229.) This 
was the last act of the convention upon this clause, 
and this made it part of the judiciary article of the 
Constitution. 

The present position of this clause was given to 
it by a committee "on style and arrangement," 
(Elliot's Debates, p. 295, )andwhosedutiesdid not 
touch the sense or substance of the instrument. 
They were to revise the style of and arrange the 
articles which were agreed to by the House, and no 
consideration was ever given by the convention to 
the arrangement of articles and sections which the 
committee on style reported, so that the only ac- 
tion of the convention on the posi/ioM of this clause 
in the Constitution was the significant action of 
taking it out of the legislative article, vvhere Mr. 
Pinckney had moved it, and putting it into the 
judiciary article, where Mr. Morris expressly^ 
moved it. And the convention, without consid- 
ering or debating the matter at all, simply acqui- 
esced in letting the report on style stand, which 
report grouped it with a family of negations, which 
apply to all the departments of the Government. 
This historical recital, I submit to every fair-mind- 
ed man, totally refutes all inferences in favor of the 
legislative control over this writ v/hich is sought 
to be derived from the position of this clause in 
the Constitution. 

But there is another view of this history which 
is exceedingly significant of the sense of this 
clause, and which is unanswerable as an argument 
against the legislative control of this writ. Mr. 
Pinckney's last proposition, of the 20lh of Au- 
gust, proposed to do just what the English Par- 
liament can now do, as will be noticed hereafter, 
to wit, give to the Legislature the full power to 
suspend the benefits of the writ whenever Con- 
gress should deem the necessity " most urgent 
and pressing," although there was no rebellion or 
invasion or.warin the land. This legislative dis- 
cretion was stricken out by Mr. Morris's amend- 
ment. The convention did its own legislation 
upon this matter, so vital to popular liberty, made 
the conditions of public danger which should au- 
thorize the temporary denial of the personal priv- 
ileges of the writ known and fixed quantities in 
the Constitution, and forever withdrew them from 
the control of Congress. And then, in adopting 
the prohibition , the convention made it part of the 
judiciary article. The significance of this action 
may be thus fairly expressed: we will not let Con- 
gress determine when the occasion for suspending 
this high privilege is most" urgent and pressing," 
as Mr. Pinckney proposes. We will not let any 
urgency, short of that occasioned by rebellion or 
invasion, suspend the privilege. We will strike 
out Mr. Pinckney's plan of letting Congress judge 
of this urgent and pressing occasion, and we will 
legislate and define what facts shall constitute this 
general state of public danger; and we will put 
into tile Constitution a legislative and unalterable 
definition of that " public danger;" and having so 
legislated, we will attach this prohibition to the 
article regulating the judicial department of the 
Government which controls and acts on this 
"privilege," and will take it out of the legis- 



lative article, where Mr. Pinckney proposes to 

place it 

I shall have occasion again to refer to the eflfect 
of this defining by the Constitution of the general 
degree of public danger in which the privilege 
majj be suspended, and only allude to it here as 
showing that the proposition to give Congress a 
general discretionary control over the writ, was 
actually presented to the convention, was con- 
sidered, was rejected, and a clause inserted in its 
place by which the Constitution legislates upon 
and makes definite the general degree of public 
danger which alone shall authorize a temporary 
denial of this " privilege" to dangerous persons; 
and that having so defined and legislated, they 
took the clause out of the legislative and placed it 
in the judicial article of the Constitution. 

Now, how irresistible is the answer furnished 
by the simple history of this clause to the argu- 
ment which is based upon its being found in the 
first article of the Constitution! 

But to make the argument, based on the position 
of this clause, appear in still stronger light of un- 
reliability, let me glance at a few facts as to the 
arrangement and position of clauses of the Con- 
stitution. You not only find, what has been already 
noticed, a large number of clauses relating to the 
powers of the States and not at all of Congress, 
in the first article, which in the main relates to the 
legislature, but you find in the judiciary article a 
new power given to Congress,to-wit, to define and 
punish treason; also a new prohibition upon the 
powers of all the departments, to-wit, that pro- 
hibiting forfeitures and corruption of blood. You 
find a new power given to Congress in the third 
section of the fourth article: to admit new Slates, 
Also one giving power to make rules for the Ter- 
ritories. Also" in the fifth article a new power 
is given to Congress to propose amendments to 
the" Constitution. Also in the sixth article is a 
new prohibition on the power of Congress and all 
other departments, excluding the adoption of re- 
ligious tests. Also in the third (judiciary) article 
a new power is given to Congress to create courts 
inferior to the Supreme Court. Also in the first 
(legislative) article is the new and important power 
of the President to veto the laws of Congress. 

This history and these obvious facts show the 
singular force of a remark of one of the first liv- 
ing lawyers of the age, to whose learned opinions 
I am much indebted for parts of this argument, 
that " no instrument permits the interpretation of 
its clauses to be affected by position less than the 
Constitution of the United States." 

I now proceed, Mr. Chairman, to consider the 
argument which is derived from the analogies of 
the English constitution. This argument may 
be thus stated: this writ, and many other features 
of our Constitution, are derived from England. 
The Parliament, and not the king, can suspend 
the writ in England. Our Constitution, which 
was aiming at making a freer Government, and 
one of less despotic power over life and liberty 
than the English, would not give to a President 
powers to suspend a law which even the English 
would not intrust to any power but their own 
representatives, and especially not an aulhoriyr 
over the liberties of the citizen, which, by violent 



8 



straggles and civil wars, had been wrested from 
tlu' executive in England. 

I make a preliminary remark touching the re- 
liability of all arguments by analogy. They are 
proverbially unreliable, and are the lowe.st grade 
of all methods of argumentation. The reasoji is, 
that if one material fact in one of the two things 
compared is dilferent from its fellow fact in the 
■ oth«r or parallel subject of comparison, then the 
whole argument falls; and this is nearly always 
iw some degree the case. To illustrate: suppose 
a statesman iji Russia were trying to )irove from 
the history of the New York and Erie canal 
tliat a canal in north Russia would be a great and 
profitable work. He would show that the waters 
for its supply were as abundant, that the nature 
of the country would admitof as easy a construc- 
tion, that the commodities lor transportation were 
as great, that the skill and enterprise for its nav- 
igation were equal, and that, in short, in every 
particular the canal in north Russia would, in fa- 
cilities for usefulness, be equal to the Erie canal; 
but he omitted to notice but one particular, but 
that one was that the water in the Russian canal 
would be eternal ice. Now, what kind of an argu- 
ment by analogy would that be, in the case sup- 
K>sed, which would decide to build the canal in 
ussia because it paid in New York.' 

Now, it is a singular fact that in the argument 
from the English constitution, whicii we now 
consider, almost everything which is assumed as 
postulates, and upon which tJie whole analogy 
ia based, is the veriest assumption, and totally 
mntrue; and besides, the argument, as conducted, 
leaves wholly out of view conditions and vital 
parts of the two things compared, which, left out, 
totally reverse theircharacters. Let me state them. 

The argument assumes that the position, which 
admits tiie President may suspend, for the public 
safety, in time of rebellion or invasion, the priv- 
ilege of the writ, is liable to the following ab- 
surdities, namely: 

1. Holding that the President may repeal or 
suspend a law of the land. 

2. That to give this power to suspend the 
privilege to the President, as it is limited by our 
Constitution, would be giving him power which 
England does not give to the king. 

3. That there is no legislative authorization 
•nd definition of the right to suspend, as claimed 
for the Pcesident, but which is required in Eng- 
hnd. 

This argument, moreowjr, against the Pres- 
ident's power, involves the following unwarranted 
and false assumptions of fact: 

1. That tlie President's general powers and 
perogativesare such as to make it as unsafe to in- 
trust to him this power to suspend, as it would be 
to intrust it to the King of England. 

2. That the power of our Government over 
this writ is as great under our Constitution as 
under the English is that of Parliament. 

3. That our Constitution provides no check 
upon the abuse of the powers of the President 
which are unknown to the English constitution. 

Every one of these propositions is vital to this 

Salogioal argument, but every one of them is 
e merest. assumption and wholly false. 



If it is true that the President may suspend the 
privilege of the writ during rebellion or invasion, 
for the public safety, still, this gives him no power 
to repeal the law itself, or to modify it so as to 
dejirive the people generally of the benefits of the 
law. It involves nothing more than suspending 
temporarily the " privilege" by which a man 
found to be dangerous to public safety may be dis- 
charged on bail or otherwise. It leaves the law in 
full force over the whole land, and does nothing 
more than authorize the President to arrest and 
hold such one or more men as public safcty for- 
bids to be at large during a rebellion or invasion. 

Mr. Chairman, this precise power of tempora- 
rily withholding from dangerous men the right to 
bo at large in the society which they endanger, is 
precisely what, by the uniform legislative prac- 
tice in England, is intrusted to the king and his 
privy council. The Parliament does do just what 
our constitutional convention, by the Constitu- 
tion, did, to wit, leave it to the Executive to find 
out, arrest, and detain temporarily in prison dan- 
gerous men. The luibeas cojy; iw act has been at 
various times suspended with respect to the power 
of imprisonment vested in the Crown upon occa- 
sions of public alarm. (2Chitty's Statutes, 56, 
note E.) The act of 4tli March, 1817, being 57 
George III, is an example, by which the king 
and his privy council, in time of peace, were per- 
mitted to arrest and hold free of bail such men as 
they might suspect to be engaged in treasonable 
practices. The acts of Parliament, so Ifar as re- 
lates to the authorization of the executive to select 
and detain dangerous men, do give the English 
executive just what our Constitution gives to ours, 
the difference between the two being that Parlia- 
ment confers the power whenever it chooses- and 
as long as it chooses, whereas our Constitution 
confers the power jwid makes it perpetual, but oaly 
confers it in two conditions of the country. Ours 
defines in advance the condition of the country 
authorizing the suspension; the Englisli only 
when it comes. 

But let us look for a moment at the character 
and foundations of this argument drawn from the 
assumed analogies between oux own, and the Eng- 
lish constitution. 

The king creates the upper House of Parlia- 
ment, including lords spiritual and temporal. The 
President does not. 

The king has the sole power of convoking the 
legislature. The President has not. 

The king can dissolve or prorogue Parliament 
at pleasure. The President cannot. 

The king has an absolute veto ou acts of Par- 
liament. The President has not. 

The king's presence at the opening of eadi Par- 
liament is necessary to give it life aa-a legislature. 
The President's is not. 

The king regulates all commercial intercourse, 
coins money, regulates the standards of weights 
and measures. The President does not. 

The king appoints and removes at pleasure all 
judicial officers of the Government. The Presi- 
dent cannot. 

The king is the head of the Church, appoints 
twenty-six bishops and archbishops, who are 
lords spiritual, convokes their councils, dissolves 



9 



them, and annula their canons. The President 
cannot. 

The ifirig is tlie depositary of the collective ma- 
jesty of the realm as to all foreign relations. He 
forms alliances, makes treaties, declares war, 
makes peace, raises and equips armies, fleets, and 
navies, builds forts, sends and receives embassa- 
dors. The President does none of these, or none 
which are not subject to the control of the Senate, 
or of Congress. 

The king creates all military commands free 
from any review by other departments of the Gov- 
ernment. The President does not. 

The king's tenure of office does not come from 
the people. The President's does. 

The king's otHce is for life. The President's 
for four years. 

The king can do no wrong, and cannot be im- 
peached. The President can be impeached, and 
can do wrong. 

Such a mere glaiice at the want of analogy be- 
tween the executives of tlie two Governments 
shows how utterly fallacious every argument by 
analogy becomes which assumes that it would be 
unsafe to tiie people to intrust this carefully de- 
fined power and care of the public safety to the 
President, because it is unsafe to intrust the un- 
limited power of Parliament to the king. The 
President is made by the people; holds his power, 
at longest, but tor four years; may be impeached 
by the Legislature of the people for its abuse; 
creates no part of the Legislature; can give, with- 
out the Senate's assent, no judicial or other office; 
makes no wars nor alliances nor treaties nor 
armies; and in every one of these respects is 
totally unlike the king, and yet it is unsafe to 
intrust to him the power in question, because it 
is unsafe to intrust it to the king holding such 
absolute, vast, irresponsible, and hereditary pre- 
rogatives! (See 2Story's Constitution, sec. 1427.) 

But, sir, it was not necessary to attempt to show 
the utter fallacy of this analogical argument, just 
because the doc trine which ad mils the power to sus- 
pend this privilege to be in the President does not, 
as is asserted, give the President powers greater 
than are given by the legislative practice under 
the constitution of England to the king. But, on 
the other hand, with this power in the President, 
the liberties of the people are far more jealously 

tuarded than are the liberties of the people of 
uigland under the English constitution. 
The radical difference between the two consti- 
tutions is that under the English constitution the 
Legislature can, at its pleasure, in times of pro- 
found peace, as well as in war, wholly suspend or 
repeal " the privilege" of the writ, or the writ it- 
self. And this power of Parliament not only may 
be, but, whenever exercised, (as in 19 George II, 
chap. 1; 34 George ill, chap. 50; 38 George III, 
chap. 36; 41 George III, chap. 26; 57 George III, 
chap. 55>) has been exercised to confer upon the 
king the power of arresting and detaining without 
bail dangerous or suspected men; whereas under 
our Constitution no such discretion or power is 
lodged witli any or all the departments of the 
Government. For neither the President nor Con- 
gress can ever repeal or suspend, at any time, either 
of peace or war, the law itself; cannot even sus- 



pend its " privileges" or benefits to any citizen in 
times of peace; cannot suspend "the privilege" 
to any, even the worst citizen, in time of any war 
except the two of" invasion "or" rebellion," and, 
even in these times can only select out of the great 
body of society such ones for arrest and detentiort 
as endanger " the public safety." Can an argu- 
ment be conceived more baldly and palpably fal- 
lacious than one which totally falsifies the facts 
presented by this contrast of the English and 
American constitutions.' So supremely solicitous 
has our Constitution been of the liberty of the 
citizens that it has wrested from the very sover- 
eignty of the nation — as well from Congress and 
the President as from the judiciary — all power 
ever, in any case, to repeal or suspend the law 
giving the writ. It has also deprived the supreme 
sovereignty of all power to deprive any man, how- 
ever dangerous, of the " privilege" of the writ ex- 
cept in two specified cases and conditions; and 
even in these two conditions it has deprived that 
sovereignty of all power over the " privilege of 
the writ," except as against the men whose liberty 
endangers " the public safety," and even against 
these, and in these carefully defined conditions of 
invasion and rebellion, it has only permitted the 
" suspension," or temporary b.anging up of the 
privilege, and not its total abolition. 

I ask if it be possible to conceive of "any form 
of human language or ingenuity which would more 
effectively guard this " privilege," without vir- 
tually depriving the Government of all power to 
detain men engaged in the destruction of the Gov- 
ernment? And yet, sir, in the face of the facts 
of this contrast — a contrast furnisiicd by the mere 
reading of the English and American constitu- 
tions — we are told that the intrusting to the Pres- 
ident, for the public safety, the detention of dan- 
gerous men in time of rebellion or invasion, is 
giving him powers over personal liberty which 
it is deemed unsafe to yield to an English king ! 

Sir, the only other argument against the doc- 
trine ascribing this power to suspend the " priv- 
il'ege" of this writ to the President, is the one 
founded upon authority of Judges Marshall and 
Story. The eminence of these authorities iri all 
matters upon which they have judicially passed, 
but which they have never done at all in the mat- 
ter now under consideration, as to whether it is 
the President or Congress to which tliis " sus- 
pending" is, by the Constitution, intrusted, makes 
me unwilling to submit to this House or to the 
country a single remark of my own upon what 
they have said touching thisquestion. I therefore 
avail myself of the just and forcible remarks upon 
this point of a great lawyer, of whom it is not too 
much to say that he is not inferior in legal learn- 
ing, in ability, or the wisdon coming from long 
experience and observation in the working of our 
Government, to either of those truly eminent 
American judges. I quote from Horace Binney, 
of Philadelphia. As to the dicta of Judge Marshall 
and the commentaries of Judge Story, he says: 

" 15ut the language of Cliiflf Justice Marshall, wliatevor 
lie its meaning, war* not used in a case which brought up 
th(! question. The case of ex parte Boluian, in 4 Cranch, 
could not bring up the question whether the President or 
Congrees had the power of suspending the privilege of the 
writ ill cases of rebellion or ijivasion. There was no re- 



10 



bcllion nor Invasion at the time, and no suspension of the 
privilege liy citlicT t'onuress or the I'rcsident. 

'•Tlie (|ueslj«n then before the court, the first question in 
er parte Uoltnnn, wiis whether the Supreme Court, haviu); 
no original juriiidietlun of the case, could issue a writ of 
habeas corptu to hriHg U|) the body of Dolman, and the rec- 
ord of his coinniitinent l>y tlie circuit court for tlic District 
of Columbia. The court was itomewliat divided upon the 
point, and the writ was issued, two judges out of the five 
dissenting." ••*»»*•* 

" The power to issue the writ was tlie (|U(!stion ; and as 
Ihe Legislature had given this power to the court, it was 
apparently reasonahli- to say that the Legislature only 
could suspenil that power. The whole language does, how- 
ever, say furtlier, tliat if the public safety should require Ihe 
suspension of the powers vi-sted in the courts, adverting, 
perhaps, to the language of ilie habeas corpus clause in the 
Constitution, it was for the Legislature to say so. 

" But there was nothing before tlie Chief Justice to raise 
the distinction between (^>llgrcss and the President ; nor 
between the privilege of the writ as descriptive of a per- 
sonal right, and the writ itself as authorized by law; nor 
between the operation of tlie Constitution itself, and the 
operation of a law of Congress. Certainly Chief Justice 
Marshall would not have said tiiat if the Constitution, 
either expressly or impliedly, had given to the President the 
power to suspend the privilege, his act would not be as ef- 
fectual upon till! courts, and upon the law of Congress which 
pave power to the courts to issue the writ, as any act of 
Congress would be. The proper question would then liave 
been between the Constitution and Congress, and not be- 
tween an act of Congress and the court. It was, however, 
altogether o^i7er, wlialever was the Chief Justice's mean- 
ing ; and was no authoriiy, though it is all that Cliief Jus- 
tice Taney cit<!s as of judicial decision. 

•'Judge Story's reniarlis, which arc also referred to in 
Merryman's ease, are of even less weight; not from per- 
sonal considerations, hut as tliey are tliose of a coniineiit- 
ator, and not of a judge in his place. Tlie point of them, 
however, is easily taken away. 

" In cominenlliig vi^ry briefly upon abuses of personal 
liberty in Knglaiid, including abuses by Parliament, and of 
the restraint placed iipnii them by the clause in the Consti- 
tution of the United t^tates, Judge Story remarks : ' Hith- 
erto no suspension of the writ has been authorized by Con- 
gress since the establishmentof the Constitution. It would 
seem, as the |iowcr is given to Congress (sic) to susjiend 
tlie writ of habeas corpus in case of rebellion or invasion, 
tliat the riglil to judge wliether the exigency h:id arisen, 
must exclusively belong to that body.' As this is printed 
in Judge Story's work, tlie last clause, which begins ditTi- 
dently enough, proceeds at once to dogoinetliitig more llian 
to beg the qu<^stion. It demands or extorts it. The very 
question is, whetlicr the power is given to Congress. Cer- 
tainly no power is given in terms to anybody to suspend 
tiie writ. There is more in the same sentence, on wliich it 
is not necessary to remark." 

1 now proceed to notice some considerations 
which sliow that this power to " suspend" is by 
the Constitution intrusted to the President. As 
the basis of the alfirinative argunient hivs neces- 
sarily been brought inio notice in considering the 
arguments agninst the President's power, it will 
not require so much time to state these consider- 
ations. 

It already appears, by a mere reading of the 
Constitution, that no power exists in Congress or 
elsewhere, ever, cither in peace or war, to suspend 
or repeal the law or the writ of /i(if»eas corpus; that 
all that can ever be done, whether done by Con- 
gress or the Piesident, in our Government, is to 
select out of the mas.>5 of society such ones of the 
citizens a.s shall he discovered in fact to be engaged 
in acts which so etidanj^er the public safetyas to 
demand that they should be held for a time de- 
prived of the " privilege" of being bailed out by 
those who arc engaged with them in the overthrow 
of the Government. We have also seen that this 
can never be done, even against the worst men, 



except at two specified periods or conditions of 
society; and these two conditions of society, re- 
bellion or invasion, are conditions of fact and not 
of law, and their existence or non-existence is 
wholly out of the reach of any legislation to affect. 
Congress cannot change the fact of the existence 
or non-existence of a rebellion by enacting that 
there is or is not one in the land. To this must 
now be added the fact that, at this precise junc- 
ture, namely, in times of insurrection and inva- 
sion, the Constitution providi.-s for Congress call- 
ing out the militia to execute the laws. Then in 
article two, section three, it provides that the 
President shall take care that these laws (which 
the militia are called out to execute, and all others) 
are faithfully executed; and then it makes the Pres- 
ident (article three, section two) the commander 
of the militia called out at this juncture of insur- 
rection or invasion. 

Putting now together the whole of these con- 
stitutional provisions, and reading them in their 
proper relations to each other, and they are thus: 
" No power in this Govermnetit .shall ever repeal 
or suspend, as against the body of the people, the 
writ of law of habeas corpus. All that shall ever 
be permitted is, that ' the privilege' of being set 
at large shall temporarily be denied to such one 
or more of the members of society as by their 
acts are endangering the public safety; but I will 
not permit even this, except u|ion the happening 
of one or other of two facts, to wit, rebellion or 
invasion; and whether these facts have happened, 
I make the President exclusive judge, as is settled 
by legislation and decision. (Sec 7 Howard, 1.) 
Just when these facts have happened I authorize 
the militia to be called out for the purpose of en- 
forcing the laws, which duty of enforcing the laws 
I give to the President; and to enable him so to 
do, I make him the Commander-in-Chief of this 
militia." 

Now, I beg to know who, that had not pre- 
judged the case, would not say instantly, from 
the simple reading of these cognate parts of the 
Constitution thus brought together, that it was the 
President only who had the power to arrest and 
detain these dangerous men.' He would be com- 
pelled so to conclude, first, because the act of find- 
ing out and " suspending" is strictly an Execu- 
tive, and not a legislative one. It does not at all 
suspend a law, but only hunts out, arrests, and 
holds a dangerous man. It is an act done only to 
enforce the laws, and that duty to see that they 
are enforced is expressly and exclusively confid'ed 
to the President. It is an act which can never be 
done except in the twoconjunciions, and these are 
the very two in which the militia are called out, 
and the President is given the exclusive command 
of them. The fact is that this presents one of 
those cases in which the siuiple statement of the 
case appears like demonstrntion. 

Why, sir, what tnan would sny that any power, 
either that of Congress, the President, or both, can 
ever, in peace or war, repeal or suspend, as to all 
the people, the right to this writ, or can suspend 
the existence of the remedy to the whole country.' 
No one dare so affirm. Then, sir, all that can be 
done is to hunt out of cellars, dens, caves, mount- 
ains, alleys, and military camps such individuals 



11 



as, in rebellion or invasion, endanger the public 
safety. What man that is not mad will say that 
Congress can ever do this hunting up of danger- 
ous men, which hunting must thus penetrate the 
plots of conspirators, e^ntcr their midnight con- 
claves, comprehend and keep upon the track of 
shifting and infinitely complex military schemes, 
movcnients, and combinations? And yet this is 
all that the Constitution permits anybody to do. 
It permits the " privilege" to be taken from dan- 
gerous men, not the law to be repealed as to the 
people at large. Whether the pubhc safety do 
demand that any given man ought to be arrested 
and deprived of bail depends upon what he is 
doing, and the character, state, and progress of 
his designs affecting the public safety. Will you 
talk, Mr. Chairman, of Congress doing the pohce 
duty of watching and delecting and determining 
upon the propriety of arresting any one conspira- 
tor.' The proposition is so totally absurd and at 
■war with, not common sense only, but with the 
principles of the Constitution, which made the 
President exclusive commander of the Army, that 
its absurdity renders it incapable of refutation by 
argument. But to avoid this absurdity, it is 
insisted that what Congress must do is, not to 
determine what individuals endanger the public 
safety, but, leaving that to the President, it is the 
office of Congress to determine, by law, whether 
the general condition of the country requires the 
suspension. But so far as this is not already 
answered, I propose now to consider it. 

My colleague, [Mr. Pendleton,] in his speech 
upon the subject, says, after quoting this habeas 
corpus clause: 

" This is certainly a provision, as the Prosident well re- 
marks, that, in case o(" rebellion or invasion, when the pub- 
lic safety may require it, the privilege of the writ may be 
suspended." 

It is entirely evident that in this the President 
and my colleague are right, and that this clause 
is equivalent to a command that when in rebellion 
or invasion the public safely requires it, this priv- 
ilege shall be suspended by somebody. It is a 
legislative definition, and an affirmative grant of 
power to somebody. That i.s, the Constitution 
Itself has legislated upon and has definitely ascer- 
certained, defined, and fixed the only two condi- 
tions of the country in which any one can be de- 
nied this privilege. It has proliibiied its being 
denied in any other state of the country than these 
two defined; and has enjoined it to be denied in 
these two, not as to the body of the people at large, 
for that cannot be done at any time,butasto such 
ones as tlu; public safety requires should be de- 
prived of it. It thus is made evident that the 
state, degree, or standard of the general danger 
of society which alone authorizi'S this " privi- 
leo-e" to be denied to any individnal, is as unalter- 
bly fixed and defined by the legislation of the Con- 
stitution as it is possible in its nature to be. It is 
just because this general degree of danger is thus 
'defined and fixed by the Constitution, that the 
power of Conirrcss over the matter of what shall 
be the general slate of public danger which shall 
authorize this suspension of the privilege to indi- 
viduals is excluded totally. How perfrctly evi- 
dent this is. Could Congress say that the public 



danger which shall permit this suspension shall 
be rebellion "and" invasion, instead of rebellion 
"or"invasion. No one will so assert. Therefore, 
so far as the general safety of the country is con- 
cerned in authorizing this suspension, a rebellion 
or an invasion existing furnishes the only stand- 
ard of public danger which any jiower in the 
Government can establish relating to the generaZ 
state of the Republic. 

The only condition which is left, therefore, un- 
fixed by the Constitution, and as to which any 
power in the Government has any discretion or 
choice to exert, is that one as to who shall be de- 
nied the " privilege" of discharge on bail. And 
the rule fixed by the Constitution for controlling 
that, the only discretion and choice left by the 
Constitution to be exercised, is that the suspen- 
sion must be of the privilege to those who endan- 
ger the public safely. As the genera! danger IS fixed 
by the Constitution to be in " rebellion" or " in- 
vasion," Congress cannot legislate as to these. 
These are conditions of fact and not of law, and 
that fact that there is or is not a rebellion in the. 
land cannot be changed by an act of Congress en- 
acting that there is or is not one. If, therefore, 
there is anything for Congress to do, it is not to 
enact that although there is a rebellion yet I en- 
act that no one, however much he may endanger 
the public safely, shall be denied bail; for that, 
we have seen, the Constitution prohibits Congress 
from doing. All there is left for Congress to do 
is to declare whether there is any man who now 
endangers the public safety, and to find him out 
and to authorize, not the suspension of the gen- 
eral law giving the writ, for that cannot be done, 
but the suspension of the " privilege" as to that 
dano-erous man. This analysis of plots and con- 
spiracies, this scrutiny of dens, caves, mountains, 
and militarycombinationsand camps, which must 
be constantly and minutely resorted loin order to 
decide who it is that must, for the public safety, 
be denied this privilege. Congress must practice 
and perform, if it be Congress which miistdecide 
this the only matterof discretion and choice which 
is in the Constitution. To say that Congress 
could, if always in session, when these times of 
danger, requir'inir instant action, occur, discharge 
ihis^mere policermilitary, or Executive function 
ofdetecling, arresting, and holding dangerous con- 
spirators, is supremely absurd. But this is all 
there is for Congress to do. Congress cannot en- 
act that although there is rebellion no one, how- 
ever dangerous, shall be arrested and held when 
the public safety requires; because the Constitu- 
tion says he shall be held who is so dangerous. 
Then if Congress legislate at all there are only 
two acts it can pass, one ordering particular men 
to be arrested and held; the other ordering that 
during the rebellion all who endanger the public 
safety be so arrested and held. The former Con- 
gress cannot do, unless Congress turn constable 
to find out who are dangerous; the latter it need 
not do, because the Conslitnlion itself has done it 
long before. For Congress to meet and do this 
last, would be precisely the same, and as sense- 
less, as for Congress to enact that the President 
be authorized to'v«,to an act of Congress and to 
jrive his reasons therefor. 



12 



It will bo soon, from wiiat has I)r-pn now said, Mr. 
Clinirman, liow<^n>iu the fiill.icy is'which attein[)t3 
to reason as to the powers of Coiiijrcss over this 
writ from the nntil()<i;i<s of the Eiiglisii constitu- 
tion. Tlir fart is, our Constitution has tloiie what 
Parliament does do. It lias enacted and defined 
when the country is in the condition to authorize 
conspirators to be deprived of the " privilege" of 
bail. Our constitutional convention, under our 
system, did the le<;;islation which, in England, 
Parliament (which is both a constitutional con- 
veniion and a legislature) can and docs do; and 
in both countries these supreme legislatures do all 
that the nature of the case admits of being done, 
to wit, authorizes the executives, in times of de- 
fini'd and specified general danger to the Slate, to 
aiTi.'St and liold those who endanger that State. 
The only ditrerence in the two couiitrii'S is that 
in ours the supreme legislation of the Constitution 
perm its this denial of the |)rivilegeoi)ly in two kinds 
of war, and never in peace, and this is unalterable 
and irrepcalable by Congress; whereas, in Eng- 
lanil, Parliament can, at any time of peace or war, 
authorize the executive to do the same. And this 
is English practice. 

IVIr. Chairman, the relations of the departments 
of this Ciovernment to each other, furnish an- 
other very conclusive consideration in support of 
what I argue. That within their spheres the three 
departments of our Government, executive, le- 
gislative, and Judicial, are coordinate and inde- 
pendent, and that " the powers of one ought not 
to beextM-cised by either of the others, "(2 Story's 
Constitution, sec. 1416,) is simply a truism of 
our governmental theory. To require that Con- 
gress or the judges should assent before the Pres- 
ident shall " see tluvt the laws are executed," or 
to compel him to adojit the plans of Congress for 
the exercise and execution of his constitutional 
military powers, is not merely to deprive this Gov- 
ernment entirely of an Executive and to substitute 
the old " committee of Congress" of the Confed- 
eration, but it is to force upon the Constitution a 
legislative usurpation of executive functions a hun- 
dred fold worse than that proposed and voted down 
in the constitutional convention. (Federalist, 70, 
&c.) The President alone commands the Army 
and militia in enforcing the laws and suppressing 
rebellion. He must swear that to the best of his 
ability he will do this. His command of these 
forces can ''* not be exercised by either of the 
Other" departments. (Story.) 

Now, all this being the plainest and the univer- 
sally admiiti'd law of the Constitution, I inquire 
whether it shall be permitted that Congress shall 
say to the President, you shall not arrest, without 
my leave, a single conspirator who is engaged 
secretly in planning and heading the rebellion, 
although you may deem it absolutely essential to 
the fulfillment of your constitutional oath, and to 
the overthrow of the rebellion.' You shall not 
arrest this conspirator without the leave of Con- 
gress, although you know that his arrest is ne- 
cessary to deliver the capital of the Government 
and theGovernmentitself from destruction, which 
Merrymnn and his confederates have planned, 
and on Uie memorable l!)ih of April began to exe- 
cute in the blood with which tl:<v have dfii'-ticd 



the streets of Baltimore. No, sir, you must let 
the capital and the Government fall, and await a 
meeting of Congress, and at its feel beg leave to 
obey your solemn oath to protict and defend the 
Constitution. And if you do, by your Army, of 
which you alone are coiTwnander, deem it neces- 
sary to arrest one of these arch-conspirators and 
traitors, then some Chief Justice of the United 
Stales, although one of the conspirators, shall 
have the right to discharge his fellow consi>irator, 
and replace him at the head of the rebellion, the 
Chief Justice, as he discharges his fellow traitor 
exclaiming," in no emergency shall you arrest any 
citizen except in aid of judicial process," and that 
although the only power who has jurisdiction to 
issue the process is at the head of the rebellion! 
Well might Justice Taney exclaim, as he did, that 
such law reduces our Constitution to " a guaran- 
tee of anarchy." If such be the dependence of 
the E.xecutive upon the other departments of the 
Government, then verily has the President not 
only ceased to be a coordinate branch of liie 
Government, but he is become the mere toy and 
plaything of anarchy and rebellion. 

But, sir, the power and duty of the Executive as 
a civil magistrate to employ the militia and Army 
in executing the laws indejiendently of and with- 
out judicial process has been uniformly acknowl- 
edged by Congress ever since we had a Govern- 
ment. This is expressly done in the act of 1795, 
which empowers him, whenever he thinks best, to 
call out the militia to suppress insurrection, and 
makes him the exclusive judge as to the necessi- 
ties of resorting to military force, (7 Howard, 1.) 
This is also done in the act of March 3, 1807, 
section one hundred and seventy-one, which au- 
thorizes tJie President to defend against intruders 
the public lands by the use of the Army and with- 
out any judicial process. It is also done in the act 
of 30th June, 1834, by which persons and prop- 
erty in the Indian country may be seized and re- 
moved by the Army without any process af law, 
under the direction and regulations of the Presi- 
dent of the United Suites. All this legislation, as 
old and well-established as the Government itself, 
is based u]ion the assumption that the Executive 
may without judicial process emplcry the Army in 
executing the laws without violating the Consti- 
tution; for if this employment of the Army by the 
President thus to enforce the laws be against the 
Constitution, then manifestly Congress cannot 
authorize any such unconstitutional einployment 
of the military forces of the Government; and all 
this long and uniform and unquestioned legisla- 
tion which began with tlie very formu^on of the 
Constitution, and continues to this day,.is uncon- 
stitutional and void. 

Mr. Chairman, this legislative interpretation of 
the Constitution furni.shes one of the most con- 
clusive refutations of this monstrous assertion of 
the Chief Justice that the military can never, " in 
any emergency," be employed by the President 
except Lo aid in the execution of some process 
which has been issued by the courts. It is at 
war with the whole current of American legisla- 
tion. 

I now consider the affirmative argument which 
is bnj<i«l upon jod'ciiil iintboiiiy . That lln' pre- 



IS 



cise principle, and also the full force of the author- 
ity I shall cite may be seen and felt, it is proper 
here to state the legal position those assume who 
deny the power of the President to arrest and 
hold these dangerous men, in time of rebellion. 
John IVIerryman, of Baltimore, was,* by order of 
the military authority of the United States, ar- 
rested and confined in Fort McHenry, upon the 
25th of May, 18G1. This was after one third of 
the States of this Union had declared their with- 
drawal from that Union, and their adhesion to a 
foreign and hostile government; after all the ju- 
dicial powers of the Federal Government in every 
one of these States was completely stricken down, 
and not only powerless for the defense of the laws 
aodOovernmentof the United States within these 
revolted States, but the officers of these Federal 
courts, the judges, marshals, and juries, were 
leading or aiding in the overthrow of the Govern- 
ment. It was after the capital of the nation was 
invested and beleaguered by vastarmies marched 
upon the capital with tlie declared purpose of 
totally overthrowing the Government of the Uni- 
ted States, of taking possession of tlie seat of its 
power, destroying all the constitutional officers of 
the Government, seizing upon and appropriating 
to its rebel government all the archives, insignia, 
and instruments of the sovereignty of the United 
States. It was after Merryman and his co-con- 
spirators had — as there is the highest reason to 
believe — destroyed the bridges and roads by which 
alone the armies of the United States could, and 
were seeking to, reach the capital of the nation 
for its defense against these armies so menacing 
the very existence of the Government. It was 
after these conspirators in Baltimore had secretly 
prepared the arms and powerful combinations of 
rebel cons]>irators to carry their State over to the 
rebellion; after their Legislature had planned the 
treason by which this conspiracy was to be sanc- 
tified by the forms of law, declaring the adhesion 
of the State to the rebellion; and after the blood 
of the patriot, who was rushing to his country's 
deliverance, had, on the ]9th of April, A. D. 1861, 
rendered the streets of Baltimore holy as the soil 
of Lexington, on whicli was sprinkled the first 
blood of tlie Revolution. And it was just when 
every loyal heart in our laud was crushing in the 
agonies of grief and fear for the utter overthrow 
of our institutions, institutions conseciated to 
freedom and to God, not by the blood of the Rev- 
olution and the jirayers and benedictions and 
memories of revolutionary ancestors alone, but I 
by the blessings of the friends of human hopes 
and human liberty in every land where God has ; 
children. Just then it was that Judge Taney ut- 
tered the sentiments — in a diatribe delivered in 
defense of one of these arch-conspirators, and in 
denunciation- of the President's struggles to save \ 
the Government — whicli I now quote. To appre- 
ciate what I quote, it must not be forgotten that 
when he uttered it the judicial authorities of the | 
Federal Government were then not only over- j 
tlirown in the States where the rebellion was, but 
the officers of that judiciary were engaged in the 
rebellion. 

First, I quote a proposition he cites from the '; 



sixth article of the Constitution, which declares 
that — 

" In all criminal prosecutions the necused shall enjoy the 
right to a speedy anil piililic trial by an impartial jury of the 
State and district wlieroin the i-rime shall have heen com- 
mitted, whicli district shall liave been previously ascer- 
tained by law." 

I next quote what is on the following page of 
that opinion in ex parte Merryman as follows: 

" I can see no ground wlwvtovor for supposing tliat tha 
President, in any enicr^iuicy or in anv state ol things, can 
autliorize the suspension of the i)riviiegt' ofthewritof lia- 
lieas corpus, or arrest a citizen, Accept in aid of tlie judicial 
power." 

He then goes on to show that the Government 
of the United States has not the power of self- 
preservation, and to prove that it has not, he says: 

" Nor can any argument be drawn from the nature of sov- 
ereignty or the necessities of government for solf-defense 
in times of tumult and danger. The Governmejit of th« 
United States is one of delegated and limited powers." 

This meaning, if it means anything, that the 
powers oftlie Government are so limited that it has 
not the power of self-defense. He also says the 
President "is not empowered to arrest anyone 
charged with an offense against the United States 
and whom he may, from the evidence before him, 
believe to be guilty; nor can he authorize any offi- 
cer, civil or military, to exercise this power." 
This he declares the President cannot do "in any 
emergency" or "in any state of things." These 
propositions have the merit of being plain and 
unmistakable. The President can, in no rebellion 
or"danger"or "tumult," "in no emergency""or 
state of things "ever arrest, or "authorize any offi- 
cer, civil or military, to arrest, any citizen." I 
want my counlrymen to mark well these words, 
and the condition of the country at the time they 
were uttered; and having done so, proceed with 
me to the consideration of the doctrines and lan- 
guage of this same man upon another occasion, 
and touching the powers of the President in the 
suppression of another rebellion, but one in a more 
northern latitude. 

Martin Luther was a citizen of Massachusetts, 
and Captain Child and his company of infantry 
were ordered to arrest him, and, if necessary, to 
break open his house for that purpose, as one 
accused of aiding and abetting the Dorr rebellion 
ill Rhode Island'. The President of the United 
States had taken measures to call out the militia 
of the States to aid the Governor of Rhode Island 
in putting down the rebellion in which Luther 
was "abetting," and Chief Justice Taney (7 
Howard, 44) declares that this interference of the 
President, " by announcing his determination, 
was as effectual as if the militia had been assem- 
bled under his orders, and it should be equally 
authoritative." It does not appear that this Lu- 
ther had actually been in the army. He, in the 
plea justifying his attempted arrest, and breaking 
his house, is only accused of having "aided and 
abetted" the insurrection. No judicial process 
was ever issued for him. The ortler for his arrest 
was made by a mere military officer, who acted 
under the sanction and authority of the President 
as stated above by Judge Taney. Luther sued 
these military men for breaking his house to ar- 



14 



rest him, and the question wliich came before the 
Supremo Court of the Unite.l States was whether 
tilt! military aulliorities,\iy order of tlie President, 
and without any judicial process, had the right to 
arrest this man and to break liis house open for 
that purpose! in order to suppress this insurrec- 
tion whicii Luther was abettinsr, and whether tlie 
courts or judges of the United States could med- 
dle with this authority of the President. It was 
the precise constitutional»mdlegal question which 
was before Taney in the Merryman case. And 
how did he then decid* it? He not only decided 
that the Piesident had the right to use the militia 
to arrest this "abettor" of insurrection, and to 
break open his house for that purpose, and that 
without any judicial process being issued tor his 
arrest, but he went on to lay down the doctrines 
whicli I now quote, and which I set in contrast 
with those he promulgates now in aid of this re- 
bellion for the total overthrow of the Government 
ujiou whose bounty he feeds. He declares, (page 
45:) 
" Unqueftioniil)ly a State may use its military power to 

Eut down armed insiirreclion too strong to be controlled 
y the civil autlioritv. Tlie power is essential to the exist- 
ence oC every eoveriimeiit, essential to the preservation ol 
order and fre'j; institutions." 

I put this declaration of the Supreme Court, 
from the lijis o'f Chief Justice Taney, in contrast 
with his denial of the powers of the Government 
of the United States now to arrest men when neces- 
sary for self-preservation, whicli 1 quote above. 
But the part of this opinion to which I invite spe- 
cial attention is expressed as follows: 

" After the President has acted and called out the militia, 
is a circuit court of the United States autlioiized to inquire 
whether his decision was right.' Could the court, while the ; 
parlies were actually contending in arms for the possession j 
of thu Government, call witnesses hetore it and iii(|Uire 
wliich party represented a majority of the people ? If it could [ 
then it would hecome the duty of the court, provided it came 
to the conclusion that the President had decided incorrectly, 
to discharge those who were arrested or detained by the ; 
troops In the service of the Uniled States orof the Govern- ; 
ment which the President wtis endeavoring to maintain. If i 
the judicial power extends so far, then the guarantee con- 
tained in the Constitution of the United States is a guaran- 
tee of anarchy and not of order."— 7 Howard, 43. 

Here, then, we have il set down in a solemn 
opinion of the highestjudici.il tribunal of the Unir 
ted States, and that opinion pronounced by the 
author of this Merryman opinion, not only that 
the President, by a military force, may arrest a 
citizen abetting a rebellion, by a military order and 



without judicial process— not only that the courts 
cannot iiilerfere with these arrests by the Presi- 
dent or discharge his prisoners who have been ar- 
rested by the troops in the service of the United 
States— not only tliat this power is essential to the 
existence of £very government, hut we have it sol- 
emnly urged that if the judicial power did extend 
so far as to discharge those arrested by the Presi- 
dent in quelling a rebellion, then tlic guarantees 
contained in the Constitution by which the Presi- 
dent may suppress such rebellion become guar- 
antees of anarchy and not of order. 

Mr. Chairman, th(! Supreme Court of theUni- 
ted States have decided this important question, 
and have wisely accorded to the President this 
power " essential to the existence of every gov- 
ernment." 

It is no answer to this decision to say that it 
derives this power of the Presidenlfrom theaclof 
1795; because, first, it does not derive it alone 
from that act, but from the " guarantees contained 
in the Constitution," as is expressly slated by the 
court; and .second, because, if the Constitution 
does not permit the President to arrest "any man" 
" in any emergency," except in aid of some ju- 
dicial process, then the act of 1795 had no right 
to authorize Luther to be arrested without judi- 
cial process, and the law of 1795, which gave the 
right, must have been held unconstitutional. Be- 
sides, if the act of 1795 authorized the President 
to arrest Luther without process and by mere mil- 
itary orders, and to hold him so that the " court 
could not discharge those who were arrested or 
detained by the troops in the service of the United 
States," (7 Howard, 43,) then 1 beg to be informed 
why Merryman and his co-conspirators could not 
also be so arrested and held in virtue of the same 
act of 1795. 

Mr. Chairman, the English drama has written 
upon the stones of the forum where conspirators 
stabbed Cajsar that sentiment which English mo- 
rality has transcribed upon the dishonored tomb 
of Jeffreys — 

'• Judgment, thou art fled to brutish beasts, 
And men have lost their reason !" 
i And, sir, history will have done for posterity 
her highest offices but poorly should she not re- 
cord as headlines of that chapter where she writes 
the judicial history of Merryman 's treason some 
such sentimentofwarningas this: the arrow meant 
for the heart of the Constitution was barbed by the 
head of its own judiciary. 



